Following Congress' direction in the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA), the FCC ruled that satellite carriers may carry distant signals that are “significantly viewed” in specified communities. In the Notice of Proposed Rule Making (NPRM) to implement SHVERA, the FCC said satellite companies must give all in-market stations at least 60 days prior written notice before importing significantly viewed distant stations. Both DirecTV and Echostar have begun sending such notices in several markets.
Many in-market stations are wondering what, if anything, they can do to block the importation of signals that would violate their network non-duplication and syndicated program exclusivity rights.
In the NPRM, the commission proposed to extend to satellite the same exclusivity rules, exceptions and procedures currently applied to cable. The NPRM also published the list of stations determined to be significantly viewed, a list that had not been officially distributed since 1972. If and when the FCC's proposed rules are adopted and put into effect, the rights and remedies of in-market stations with respect to imported significantly viewed stations will be roughly the same for both cable and satellite.
In the cable context, television stations that are designated as significantly viewed have a limited exemption from the application of the FCC's network non-duplication and syndicated exclusivity rules. Cable companies may carry the signal of out-of-market significantly viewed stations in the communities in which they are significantly viewed without deleting the network or syndicated programming of such stations, even if those communities are within the protected geographic zone of the in-market network affiliate or program rights holder.
Stations facing incursions into the exclusivity rights may file a petition for a waiver of the significantly viewed exception to the exclusivity rules. A station seeking such a waiver must demonstrate that the significantly viewed station has fallen below the threshold viewer standard over at least a two-year period. For network stations, the threshold viewer standard is at least a 3-percent share of total viewing hours and a net weekly circulation of 25 percent in non-cable households. For the purposes of this test, only ABC, CBS and NBC are considered networks.
Although stations seeking to be added to the significantly viewed list may conduct surveys on a county-by-county basis, stations seeking a waiver of the significantly viewed status of another station must have surveys conducted on a community-by-community basis. This can make the data collection process more difficult. Although Nielsen may have community-by-community data available in some markets, it does not routinely collect data in all markets. Therefore, interested stations seeking protection would need to commission their own surveys, which is costly and time-consuming.
Harry C. Martin is the immediate-past president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth.
Dateline
December 1 is the deadline for TV stations in Colorado, Minnesota, Montana, North Dakota and South Dakota to file their 2005 renewal applications, biennial ownership reports and EEO program reports. December 1 also is the renewal application-filing deadline for TV translators, Class A TV stations and LPTV stations in those states.
December 1 is the start date for pre-filing renewal announcements for TV stations in Kansas, Nebraska and Oklahoma, which will be looking forward to a Feb. 1, 2006, renewal filing date.
December 1 is the deadline for TV stations in Connecticut, Massachusetts, Maine, New Hampshire, Vermont and Rhode Island to file their 2005 biennial ownership reports. Stations in those states will be required to file another such report on Dec. 1, 2006, with their renewal applications, but no filing fee will be imposed.
December 1 is the deadline for TV stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont to place their 2005 EEO public file reports in their public files and on their Web sites.
Send questions and comments to:harry_martin@primediabusiness.com
